14-003606MPI Agency For Health Care Administration vs. Cape Memorial Hospital, Inc., D/B/A Cape Coral Hospital Status: Closed Recommended Order on Wednesday, July 27, 2016.

Summary: Petitioner may receive Medicaid overpayment from provider.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

AGENCY FOR HEALTH CARE

ADMINISTRATION,

Petitioner,

vs. Case No. 14 - 3606MPI

CAPE MEMORIAL HOSPITAL, INC.,

d/b/a CAPE CORAL HOSPITAL,

Respondent.

_______________________________/

RECOMMENDED ORDER

On January 20, 2016, an administrative hearing in this case

was held in Tallahassee, Florida, before William F. Quattlebaum,

Administrative Law Judge, Division of Administrative Hearings.

APPEARANCES

For Petitioner: Daniel Elden Nordb y, Esquire

Shutts & Bowen LLP

Suite 804

215 South Monroe Street

Tallahassee, Florida 32301

For Respondent: Joanne Barbara Erde, Esquire

Donna Stinson, Esquire

Duane Morris LLP

Suite 3400

200 South Biscayne Boulevard

Miami, Florida 33131

STATEMENT OF THE ISSUE

Whether the Agency for Health Care Administration

(Petitioner) is entitled to recover certain Medicaid payments

made to Cape Memorial Hospital, Inc. , d/b/a Cape Coral Hospital

(Respondent).

PRELIMINARY STATEMENT

By Final Audit Report (FAR) , dated September 14, 2012, the

Petitioner alleged that the Respondent, a Medicaid provider, had

received o verpayments totaling $65,995.35 Ðfor services that in

whole or in part are not covered by Medicaid.Ñ The Respondent

disputed the alleged overpayments and requested a formal

administrative hearing. By Amended Final Audit Report (AFAR) ,

dated July 25, 2014 , the Petitioner amended the total amount of

the alleged overpayments to $63,305.61.

On August 4, 2014, the Petitioner forwarded the request to

the Division of Administrative Hearings (DOAH) , which scheduled

the hearing to commence on October 21, 2014. The hearing was

continued, and the case was subsequently placed in abeyance to

permit the conclusion of litigation in related cases. The

hearing eventually commence d on January 20, 2016.

Prior to the hearing, the parties submitted a Joint

Prehearing Sti pulation, including a statement of undisputed

facts. To the extent that the stipulated facts are relevant,

the facts are adopted and incorporated herein as necessary.

At the hearing, the Petitioner presented the testimony of

one witness, and had Exhibit s 1 through 28 admitted into

evidence. T he Respondent had Exhibits 2, 4 through 17,

19 through 24, 26 through 30, 34 through 37, 39, 45, and 47

through 49 admitted into evidence.

Although the AFAR identified eight alleged ÐoverpaymentÑ

claims, the Peti tioner presented evidence as to only six of the

claims, totaling $57,350.67.

A T ranscript of the hearing was filed on February 15, 2016.

Both parties subsequently filed Proposed Recommended Orders that

have been reviewed in the preparation of this Recom mended Order.

FINDINGS OF FACT

1. Title XIX of the Social Security Act establishes

Medicaid as a collaborative federal - state program in which the

state receives federal funding (also known as Ðfederal financial

participationÑ or ÐFFP") for services prov ided to Medicaid -

eligible recipients in accordance with federal law.

2. The Florida statutes and rules relevant to this

proceeding essentially incorporate federal Medicaid standards.

3. The Petitioner is the state agency charged with

administering th e Medicaid provisions relevant to this

proceeding.

4. Section 409.902 , Florida Statutes (2015) 1/ , states that

the Petitioner is the Ðsingle state agency authorized to make

paymentsÑ under the Medicaid program. The referenced statute

limits such payment s to Ðservices included in the programÑ and

only on Ðbehalf of eligible individuals.Ñ

5. The Respondent is enrolled in the Florida Medicaid

Program as a Medicaid Hospital Provider.

6. The Respondent's participation in the Florida Medicaid

Program is subject to the terms of a Medicaid Provider

Agreement.

7. The Respondent's Medicaid Provider Agreement requires

compliance with all state and federal laws governing the

Medicaid program, including the state and federal laws limiting

Medicaid payments fo r services provided to undocumented aliens.

8. Eligibility for Medicaid services is restricted to

United States citizens, and to specified non - citizens who have

been lawfully admitted into the United States.

9. Pursuant to s ection 409.902(2)(b), Medi caid funds

cannot be used to provide medical services to individuals who do

not meet the statutory eligibility criteria "unless the services

are necessary to treat an emergency medical condition" or are

for pregnant women. The cited statute further provid es that

such services are Ðauthorized only to the extent provided under

federal law.Ñ

10. The relevant federal law (42 U.S.C. s ection

1396b(v)(3)) defines an "emergency medical condition" as:

[A] medical condition (including emergency

labor and delivery ) manifesting itself by

acute symptoms of sufficient severity

(including severe pain) such that the

absence of immediate medical attention could

reasonably be expected to result in - (A)

placing the patient's health in serious

jeopardy, (B) serious impairmen t to bodily

functions, or (C) serious dysfunction of any

bodily organ or part.

11. The Florida definition of Ðemergency m edical

conditionÑ set forth at s ection 409.901(10)(a) mirrors the

federal definition.

12. Pursuant to s ection 409.904(4) , the Pe titioner can

make payments to a Medicaid provider on behalf of "a low - income

person who meets all other requirements for Medicaid eligibility

except citizenship and who is in nee d of emergency medical

services " for Ðthe period of the emergency, in accordan ce with

federal regulations."

13. The Florida Medicaid program requirements relevant to

this proceeding were identified in the Florida Hospital Services

Coverage and Limitations Handbook (incorporated by reference in

Florida Administrative Code Rule 59G - 4.160(2),), and in the

Florida Medicaid Provider General Handbook (incorpo rated by

reference in Florida Administrative Code R ule 59G - 5.020 .)

14. The applicable Florida Hospital Services Coverage and

Limitations Handbook provided as follows:

The Medicai d Hospital Services Program

reimburses for emergency services provided

to aliens who meet all Medicaid eligibility

requirements except for citizenship or alien

status.

Eligibility can be authorized only for the

duration of the emergency. Medicaid will

not pay for continuous or episodic services

after the emergency has been alleviated.

15 . Similar provisions were contained in the Florida

Medicaid Provider General Handbook.

16. Section 409.913 requires that the Petitioner monitor

the activities of Medicaid providers and to Ðrecover

overpayments.Ñ

17. The PetitionerÓs Bureau of Medicaid Program Integrity

(BMPI) routinely conducts audits to monitor Medicaid providers.

18 . Section 409.913(1)(e) defines ÐoverpaymentÑ to include

Ðany amount that is not authorized to be paid by the Medicaid

program whether paid as a result of inaccurate or improper cost

reporting, improper claiming, unacceptable practices, fraud,

abuse, or mistake.Ñ

19 . The BMPI conducted a review of the Respondent's claims

for se rvices rendered to undocumented aliens during the period

January 1 through December 31, 2006.

20 . The Respondent provided all documentation requested by

the Petitioner necessary to review the claims addressed herein.

21 . As to each claim, the designa ted reviewing physician

made a determination, based on the medical records, as to

whether the claim was related to an emergency medical condition,

and, if so, when the emergency medical condition was alleviated.

22 . Based on the evidence, and on the tes timony of the

physicians identified herein, the determinations of the

physicians are fully credited as to the existence of emergency

medical conditions and as to when such conditions were

alleviated.

CLAIM #1

23 . Dr. Thomas Wells reviewed Claim #1, wh ich involved a

le ngth of stay from March 31 through April 10, 2006.

24 . Based upon his review of the medical records,

Dr. Wells determined that an emergency medical condition existed

on March 31, 2006, and that it had been alleviated as of

April 6, 20 06.

CLAIM #3

25 . Dr. Michael Phillips reviewed Claim #3, which involved

a length of stay from May 27 through June 12, 2006.

26 . Based upon his review of the medical records,

Dr. Phillips determined that an emergency medical condition

existed on Ma y 27, 2006, and that it had been alleviated as of

May 28, 2006.

CLAIM #4

27 . Dr. Michael Phillips reviewed Claim #4, which involved

a length of stay from January 15 through January 20, 2006.

28 . Based upon his review of the medical records,

Dr. Ph illips determined that an emergency medical condition

existed on January 15, 2006, and that it had been alleviated as

of January 17, 2006.

CLAIM #5

29 . Dr. Michael Phillips reviewed Claim #5, which involved

a length of stay from March 4 through April 10, 2006.

30 . Based upon his review of the medical records,

Dr. Phillips determined that an emergency medical condition

existed on March 4, 2006, and that it had been alleviated as of

March 7, 2006.

CLAIM #6

31 . Dr. Steve Beiser reviewed Claim #6, which involved a

length of stay from June 15 through June 18, 2006.

32 . Based upon his review of the medical records,

Dr. Beiser determined that an emergency medical condition

existed on June 15, 2006, and that it had been alleviated as of

June 16, 20 06.

CLAIM #7

33 . Dr. Thomas Wells reviewed Claim #7, which involve d a

length of stay from June 15 through July 6, 2006.

34 . Based upon his review of the medical records,

Dr. Wells determined that the emergency medical condition

existed on June 15, 2006 , and that it had been alleviated as of

June 28, 2006.

CONCLUSIONS OF LAW

35 . The Division of Administrative Hearings has

jurisdiction over the parties to and the subject matter of this

proceeding. §§ 120.569 and 120.57, Fl a . Stat . (2015) .

36 . The Petitioner is directed in section 409.913 to

monitor the activities of Medicaid providers and to recover

ÐoverpaymentsÑ of Medicaid claims. Overpayments are defined as

Ðany amount that is not authorized to be paid by the Medicaid

program whether paid as a result of inaccurate or improper cost

reporting, improper claiming, unacceptable practices, fraud,

abuse, or mistake.Ñ

37 . The Respondent is charged with the responsibility for

assuring that claims for payment are for services that are

medically n ecessary, and the need for which are Ðfully and

properlyÑ documented. Section 409.913(7) provides, in relevant

part, as follows:

When presenting a claim for payment under

the Medicaid program, a provider has an

affirmative duty to supervise the provision

of, and be responsible for, goods and

services claimed to have been provided, to

supervise and be responsible for preparation

and submission of the claim, and to present

a claim that is true and accurate and that

is for goods and services that:

* * *

(e) Are provided in accord with applicable

provisions of all Medicaid rules,

regulations, handbooks, and policies and in

accordance with federal, state, and local

law.

38 . The burden of proof is on the Petitioner to prove the

material allegations by a pr eponderance of the evidence.

Southpointe Pharmacy v. Dep't of Health & Rehab. Servs. ,

596 So. 2d 106, 109 (Fla. 1st DCA 1992).

39 . The PetitionerÓs audit report, if accompanied by

supporting work papers, is "evidence of the overpayment."

See § 409.9 13(22) , Fla . Stat. Absent credible evidence to the

contrary, the audit report and work papers establish the total

overpayment.

40 . In this case, the evidence establishes that the

Respondent collected Medicaid funds for medical services that

were provid ed to specific patients after the emergency medical

conditions which precipitated their hospitalizations had been

alleviated. The Petitioner has met the burden of establishing

that the disputed charges referenced herein were not properly

billed to Medicai d and are overpayments that may be recovered.

41 . For a variety of reasons fully presented in the record

and in the RespondentÓs Proposed Recommended Order, the

Respondent has asserted that the Petitioner lacks the legal

authority to recover the amounts identified as ÐoverpaymentsÑ in

this case.

42 . The same assertions were previously litigated and

ultimately rejected in a similar case, AHCA v. Lee Memorial

Health System Gulf Coast Medical Center , Case No. 15 - 3876MPI

(Fla. DOAH January 26, 2016) , reje cted (Fla. AHCA April 4,

2016) , hereinafter Ð Gulf Coast .Ñ

43 . The hearing in the instant case occurred after the

hearing but prior to entry of the Recommended Order and Final

Order in Gulf Coast . All of the evidence relevant to the

RespondentÓs asserti ons was presented during the Gulf Coast

hearing. Upon the RespondentÓs request, said evidence was

thereafter admitted into the record of the instant case.

44 . Although the Final Order issued in Gulf Coast has been

appealed by the provider to the First District Court of Appeal

(Case No. 1D16 - 1969,) the filing of the appeal does not stay

enforcement of the agency decision. See § 120.68(3) , Fla. Stat .

Accordingly, the RespondentÓs assertion that the Petitioner

lacks the legal authority to recover the amo unts identified as

ÐoverpaymentsÑ in this case is rejected.

45 . Additionally, the Respondent challenged the

PetitionerÓs implementation of an alleged ÐalleviationÑ standard

on a variety of grounds. The same challenge was presented and

rejected in Bayfr ont Medical Center , et al. v. Agency for Health

Care Administration , Case No. 14 - 4758RU (Fla. DOAH April 20,

2015), affÓd , Case 1D15 - 2299 (Fla. 1st DCA June 28, 2016.)

Accordingly, the challenge presented in the instant case is

rejected.

46 . The Petiti oner seeks an award of audit costs of

$697.04 in this proceeding pursuant to s ection 409.913(23). The

cited section provides that the agency may recover such costs

Ðif the agencyÓs findings were not contested by the provider or,

if contested, the agency u ltimately prevailed.Ñ The agency has

not prevailed in two of the eight claims identified in the AFAR,

and accordingly the Petitioner is not entitled to recover the

total costs assessed.

RECOMMENDATION

Based on the foregoing Findings of Fact and Conclusi ons of

Law, it is RECOMMENDED that the Agency for Health Care

Administration enter a final order finding a Medicaid

overpayment of $57,350.67 related to the six claims identified

herein.

Pursuant to s ection 409.913(23), Florida Statutes, the

Petitioner i s entitled to recover certain investigative, legal,

and expert witness costs. Jurisdiction is retained to determine

the amount of appropriate costs if the parties are unable to

agree. Within 30 days after entry of the final order, either

party may file a request for a hearing on the amount. Failure

to request a hearing within 30 days after entry of the final

order shall be deemed to indicate that the issue of costs has

been resolved.

DONE AND ENTERED this 27 th day of July , 2016 , in

Tallahassee, Leon Co unty, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399 - 3060

(850) 488 - 9675

Fax Filing (850) 921 - 6847

www .doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 27 th day of July , 2016 .

ENDNOTE

1/ All statutory references are to Florida Statutes (2015).

COPIES FURNISHED:

Joanne Barbara Erde, Esquire

Duane Morris LLP

Suit e 3400

200 South Biscayne Boulevard

Miami, Florida 33131

(eServed)

Donna Stinson, Esquire

Duane Morris LLP

Suite 3400

200 South Biscayne Boulevard

Miami, Florida 33131

(eServed)

Douglas James Lomonico, Esquire

Agency for Health Care Administration

Mail Stop 3

2727 Mahan Drive

Tallahassee, Florida 32308

(eServed)

Daniel Elden Nordby, Esquire

Shutts & Bowen LLP

Suite 804

215 South Monroe Street

Tallahassee, Florida 32301

(eServed)

Andrew E. Schwartz, Esquire

Shutts and Bowen, LLP

Suite 2100

200 East B roward Boulevard

Fort Lauderdale, Florida 33301

(eServed)

Jacqueline F. Howe, Esquire

Shutts and Bowen LLP

Suite 2100

200 East Broward Boulevard

Fort Lauderdale, Florida 33301

(eServed)

Richard J. Shoop, Agency Clerk

Agency for Health Care Administrat ion

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

Elizabeth Dudek, Secretary

Agency for Health Care Administration

2727 Mahan Drive, Mail Stop 1

Tallahassee, Florida 32308

(eServed)

Stuart Williams, Gen eral Co unsel

Agency for Healt h Care Administration

2727 Mahan Drive, Mail Stop 3

Tallahassee, Florida 32308

(eServed)

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within

15 days from the date of this Recommended Order. Any exception s

to this Recommended Order should be filed with the agency that

will issue the Final Order in this case.